Warrantless wiretaps just the tip of the (classified) iceberg

How did a massive (and illegal) NSA surveillance program come into existence …

This past Friday, the Offices of Inspectors General of the Department of Defense, Department of Justice, CIA, NSA, and Office of the Director of National Intelligence, released an unclassified summary of a report that fills in key details of the problems and controversies surrounding the large-scale electronic surveillance efforts that president George W. Bush authorized the NSA to undertake in the wake of 9/11.

In my previous article on the report, I described how the extraordinary secrecy around the Presidential Surveillance Program (PSP) ended up sabotaging its practical effectiveness as a counter-terror tool. There are a number of security-related rationales for this secrecy, mostly of the "security through obscurity" variety, but there was a larger, more political reality that appears to have done as much as any operational security concerns to keep the program's existence so closely held. In short, the OIG report recounts how the DOJ eventually decided that parts of the PSP were illegal, and the report's narrative shows clearly that the program's legality was actually a secondary concern for key members of both the executive and legislative branches, on both sides of the political aisle.

The OIG report is ultimately one chapter in the larger story of how, in the wake of the September 11 attacks, both the executive and the legislative branches of government were willing to turn a blind eye to whatever they thought had to be done to stop further attacks. This attitude, which was shared by members of both parties and much of the public (this writer included), was that the executive branch should act first to save the country, then worry about legal and Constitutional issues after the fact.

Whatever your feelings on the "act first, legalize later" approach that America adopted in the wake of 9/11, it's well worth looking at the OIG report as a document describing the government's effort to accommodate this definitionally lawless approach to national security within the larger framework of a government of laws.

Compartments: TSP, OIA, and the anatomy of the black box

In the wake of 9/11, the NSA asked for and received a slate of new surveillance powers, all of which were authorized in a single Presidential Authorization. The program authorized by this directive, which had to be reauthorized every 45 days or so, was called the Presidential Surveillance Program (PSP), and we might not know about any of it if it hadn't been for the New York Times, which shed light on one part of the PSP in a blockbuster article of December 2005.

The part that the NYT uncovered, which involved the NSA listening in on the electronic communications of suspected terrorists without a warrant, was later acknowledged by the White House and labeled the Terrorist Surveillance Program (TSP). Importantly, the OIG report reveals that there are parts of the PSP that are not part of the TSP. The number and nature of these still-secret PSP components is not publicly known, so the report lumps them all together under the heading of Other Intelligence Activities (OIA) in order to distinguish them from the now-public TSP. (So, just to be clear: PSP = TSP + OIA, where the OIA is basically every part of the PSP that hasn't been uncovered by the media.)

The real shocker in the report is that it was clearly the OIA that included the most illegal parts of the PSP, and the ones that provoked the dramatic 2004 showdown between the DOJ, FBI, and the White House.

We know that the Other Intelligence Activities that the NSA was engaged in were not legal because the DOJ eventually determined that they weren't. (More on this in a moment.) As for how the DOJ first declared the program legal before eventually deciding that it was "not supported by law," I don't really know how that happened, but I do know who the OIG report has decided to pin most of the blame on: former Office of Legal Counsel Deputy Assistant Attorney General John Yoo.

Out of the loop: the OIA and Yoo

Take a look at the DOJ org chart below; I've put a red circle around the unit where John Yoo served as the number two.

The DOJ org chart. John Yoo is the #2 guy in the OLC, which has a red circle around it.

Yoo was the OLC guy in charge of national security, and the president tapped him directly to write the US government's official legal opinions as to the legality of the PSP. Yoo was "read into" the classified program, but his immediate superior, OLC Assistant Attorney General Jay Bybee, was not.�

Bybee later told the OIG that he had no idea that his assistant, a man whose position didn't even require Congressional confirmation, was advising the president directly on a major, Constitution-busting classified signals intelligence initiative. (Attorney General John Ashcroft, who was also read into the program, actually complained about this highly irregular situation, but nobody fixed it.)

The problem wasn't just that Yoo had been scooped up out of the bowels of the DOJ directly by the president without the knowledge of his (Congressionally confirmed) superiors, and was then writing memoranda on the legality of the PSP. No, the real problem was that his advice was apparently so bad that it appears to be something like legal malpractice, yet it was allowed to stand for three years as the official US position on a critical constitutional issue without ever having undergone a shred of peer review or oversight.

Yoo and Yoo alone

In those fear-filled days after 9/11, Yoo, the (vice?) president's go-to legal guy on national security matters, donned his cowboy hat, buckled on his six-guns, and rode out far ahead of the rest of the DOJ, eventually going way further in search of legal rationalizations for the NSA's activities than anyone after him was even remotely comfortable with.�

What Yoo ultimately got away with in the name of national security is remarkable, and I've outlined his methods below (the report cites specific examples); as you read the following, keep in mind that all of these problems were uncovered only after Yoo's peers were finally allowed to review his work. In other words, this isn't just about Yoo's deficiencies as a lawyer, but about the fact that he was directed to work in secrecy and isolation, without any of the normal institutional safeguards that would typically identify and stop such flawed work.

The OIG report cites a litany of places where Yoo's legal advice was so far out-there that his successors had to throw it out. Indeed, the OIG states that "the subsequent identification of what DOJ officials perceived to be serious factual and legal flaws in Yoo's early legal analysis of the PSP also precipitated a major dispute between DOJ and the White House over reauthorization of the program that nearly led to the resignations of several senior DOJ and FBI officials in March 2004."

The report indicates that these flawed and factually challenged opinions were in support of the legality of the still-secret OIA, not the TSP. Yoo achieved these feats of legal contortion by three key methods, the first of which was that he simply ignored case law and laws passed by Congress (statute) that would have been a problem for his arguments. Many of the OIG report's damning revelations about Yoo's sorry record involve such sins of omission.

But there were some cases where the law was so clearly at odds with his description of the OIA that it could not be ignored. In these instances, Yoo trotted out his (now widely derided) "unitary executive" theory, which holds that no law passed by Congress can restrict the executive branch's exercise of certain powers that are "inherent in the president." From the report:

Yoo also discussed in his memoranda the legal rationale for Other Intelligence Activities authorized as part of the PSP. To the extent that particular statutes might appear to preclude these activities, Yoo concluded that "we do not believe that Congress may restrict the President's inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack."

Even after ignoring and dismissing Congress, Yoo still had to resort to one final, desperate measure in order to paper over what the NSA was doing with some veneer of legality. The OIA were so illegal that Yoo actually had to misrepresent them in his opinions in order to make it all work.

According to the OIG report, the Other Intelligence Activities that Yoo's memoranda described and blessed as legal were more limited in scope than what was actually being done by the NSA at the time. If his descriptions of what the OIA were had matched reality, even Yoo's already stretched opinions supposedly wouldn't have supported them.

When Yoo left the DOJ in May 2003, his successors set about trying to fix the mess his flawed opinions had made by discarding them and cooking up from scratch new legal analyses that could put the PSP on firmer legal footing. One attempt involved stretching the Authorization for the Use of Military Force that was passed by Congress shortly after 9/11 to give the appearance of Congressional cover to some of the PSP activities. But even then, lawyers still couldn't justify what was going on with OIA, and senior DOJ and FBI officials eventually threatened resignation over the issue.

The legality of the OIA ultimately became a moot point a year ago on July 10, when Congress passed the FISA Amendments Act of 2008 that legalized everything in the PSP—OIA included. Presumably, those once-illegal Other Intelligence Activities are still going on, but now with the explicit support of newly-passed law.

Rationalizations in an emergency

Yoo may have made a hash of the Constitution in his efforts to justify the PSP, but he had plenty of help. Yoo's enablers were scattered throughout a US government that, with the ruins at Ground Zero still smoking and giving up the bodies of the dead, was eager to look the other way so that the executive branch could do something about the terrorist threat. Nobody from either branch or major party who knew about the program wanted to ask too many questions or look too closely.

The OIG report says that "the Attorney General was read into the [PSP] on the same day he signed the first Authorization as to form and legality." Clearly, Ashcroft didn't have the benefit of even a moment's study of the program before he declared it legal, so the job of "papering" it after-the-fact was handed to Yoo. The OIG report indicates that Yoo's first opinion specifically addressing the legality of the PSP was not drafted until months after the PSP's initial authorization. And despite Yoo's yeoman efforts, the DOJ was never able to place the program on firm legal footing. The latter task was left to Congress and the aforementioned 2008 FISA amendment.

Congress's culpability in the PSP goes all the way back to October of 2001, when select members of Congress from both parties were briefed on the PSP by the White House. The congressional leaders emerged from that briefing either knowing key details of the PSP, or knowing that they didn't know enough to evaluate the program. Either way, they were partners with Yoo and the White House in whatever it is that the NSA did and continues to do under the heading of Other Intelligence Activities.